S.R Nayak, J.:— The Income-tax Appellate Tribunal, Hyderabad Bench (hereinafter referred to as “the Tribunal” for brevity), has referred to this court the following question of law, which is said to arise from the order of the Tribunal passed under section 254(2) of the Income-tax Act, 1961 (for short, “the Act”), by which the Tribunal recalled the earlier order passed by it in ITA No. 551.Hyd/1986, under section 256 of the Act for the opinion at the behest of the Commissioner of Income-tax, Andhra Pradesh-I, Hyderabad:

“Whether, on the facts and in the circumstances of the case, the Income-tax Appellate Tribunal was correct in law in holding that certain errors apparent from record, amenable to rectification have crept in the original order in I.T.A No. 551.Hyd/1985, dated March 31, 1986?”

2. The background facts leading to the reference be noted briefly as under: The respondent-assessee is a company registered under the provisions of the Companies Act and it carries on manufacture of cylinders which are required for keeping gas for petromax lights and deals in liquid petroleum gas and the petroleum gas is distributed to consumers through dealers. The assessment year involved is 1980-81 for which the relevant accounting year ended on March 31, 1980. The assessee returned a loss of Rs. 3,20,064. The Income-tax Officer determined the net loss at Rs. 2,67,680. The Commissioner of Income-tax (hereinafter referred to as “the CIT”, for short), after examination of the records found that the assessee has shown “security deposits collected against empty cylinders of gas” in the balance-sheet as “deposits against cylinders” in a sum of Rs. 16,73,285 as liability. According to the Commissioner of Income-tax, the security deposit was not received by the assessee as trustee or custodian of deposits from the dealers and there is no obligation for the customers to return the empty cylinders nor is there any time-limit for returning the cylinders. In that view of the matter, the Commissioner of Income-tax was of the opinion that the security deposit should be treated as trading receipts. Accordingly, he issued show-cause notice to the assessee. In response to the show-cause notice, the assessee filed its objections and contended that there was obligation on its part to return the security deposit the moment the customers return the cylinders. It was also contended that there were other dealers in the same line of business and they were not at all disturbed and, therefore, any disturbance in the hands of the assessee would amount to discrimination. It was also further contended by the assessee that the Commissioner of Income-tax (Appeals) was seized of the matter and, therefore, there was no jurisdiction vested in the Commissioner of Income-tax to revise the order in the purported exercise of the power under section 263 of the Act.

3. The Commissioner of Income-tax, on consideration of the objections of the assessee and placing reliance on the judgment of the Supreme Court in Punjab Distilling Industries Ltd. v. CIT, [1959] 35 ITR 519 held that the amount received towards the cylinders by way of security deposit was actually a part of the consideration of the price for the cylinders and that it formed an integral part of the trade transaction. In substance, according to the Commissioner of Income-tax, the transaction in question was nothing but sale and the mere fact that the assessee had agreed to take back the cylinders does not really alter the nature of the transaction. The assessee went in appeal before the Tribunal. The Tribunal upheld the order of the Commissioner of Income-tax by holding that as per the terms and conditions for providing gas cylinders, especially clause 13, both parties were at liberty to terminate the contract by giving 15 days notice in writing and on returning the cylinders the assessee would refund the balance of deposit, if any, after deducting the amounts due to the company. The Tribunal also found that the assessee was writing off the entire cost of the cylinders by claiming cent per cent, depreciation and the stock of cylinders is not reflected in the balance-sheet of the company. The Tribunal opined that the inference arising therefrom is that the entire cost of the manufactured cylinders is claimed as deduction by writing off the same in the profit and loss account. It was also found by the Tribunal that, as a matter of fact, the assessee was writing off the amount as if the cylinders were sold. It was also found that the security deposit collected by the assessee was more than the actual cost of the cylinders. Against the above order of the Tribunal, the assessee filed miscellaneous petition numbered as M.P No. 37.Hyd. of 1986. In this petition, the assessee contended that ground No. II taken by it in the main grounds of appeal relating to the jurisdiction of the Commissioner of Income-tax under section 263 of the Act had not been dealt with. The Tribunal considered it but following the unreported decision of this court in Commissioner Of Income-Tax v. V. Veeri Naidu & Sons and Sons (unreported judgment in R.C No. 2 of 1982, dated February 4, 1984) held that as the question of taxability of amount of Rs. 16,73,285 was neither raised before the Commissioner of Income-tax (Appeals) in ground No. 2 nor was it considered by him, the theory of merger could not be invoked in this case and as such the Commissioner of Income-tax had jurisdiction under section 263 of the Act.

4. The assessee again filed a second miscellaneous petition numbered as MP No. 50.Hyd. of 1986 praying to recall the original order of the Tribunal in ITA No. 551.Hyd. of 1985, dated March 31, 1986, on the ground that the said order contains certain mistakes apparent from the record. The alleged apparent mistakes were the following:

1. That in para. 6 of the Appellate Tribunal's order the Appellate Tribunal observed that the factum of the rule 26 of the Gas Cylinder Rules was not brought to the notice of the Commissioner of Income-tax but left the matter at that without deciding the specific argument raised as contained in para. 6 of the Appellate Tribunal's order.

2. That in para. 8 of the Appellate Tribunal's order it was stated that terms and conditions governing the parties especially clause 13 providing liberty to both the parties to terminate the contract by giving 15 days' time notice do not appear to have been produced before the Commissioner of Income-tax since there was no discussion about it. Since the extract of the rule was already furnished forming part of the income-tax records, the same should not have been made the basis to decide the issue before the Appellate Tribunal.

3. That in the same para. 8 the Appellate Tribunal's observation, that the cancellation of contract and obtaining the refund proves the rule that when the cylinder was supplied what was collected as security deposit is nothing but sale price, is incorrect factally because what was obtained from the customer is a refundable deposit which do not form part of the sale proceeds of the cylinder.

5. The Tribunal dismissed the said petition also by its order dated April 16, 1987, by observing that the prayer contained in the miscellaneous petition would tantamount to review of its own order if the Tribunal were to recall the earlier order, and such a power is not available to the Tribunal under the provisions of the Act. It was also held by the Tribunal that there is no mistake apparent from the record, which calls for amendment or modification of the order of the Tribunal. Again the assessee, quite curiously, filed a third miscellaneous petition numbered as M.P No. 21.Hyd. of 1987 raising the following contentions:

“1. The observations of the Tribunal that the security deposit was not received by the assessee as trustee or custodian and that there was no obligation for the customers to return the empty cylinders nor was there any time for returning the cylinders is contrary to the facts referred.

2. The Tribunal misdirected itself in holding that security deposit formed part of the trading transactions and not considering the decision of the Supreme Court in the case of K.M.S Lakshmanier and Sons v. CIT, [1953] 23 ITR 202.

3. The Appellate Tribunal overlooked the decision of the Andhra Pradesh High Court in the case of CIT v. Andhra General Finance Corporation, [1985] 156 ITR 386 wherein under similar curcumstances, receipt of money on trust was not held to be income.

4. The Special Bench of the Tribunal dealing with the identical issue in the case of Detective Devices Pvt. Ltd., had held that these are not taxable receipts. The Tribunal further admitted the following submissions made through a written statement dated September 25, 1987, for its consideration in the miscellaneous petition before.

5. The Tribunal had not considered the agreement between the assessee and the assessee's customers as a whole and should have looked into the agreement in its entirety.

6. The Tribunal overlooked the fact that the cylinders against which security was taken constituted plant of the assessee. Instead they concluded that the writing off lent support to the proposition that the cylinders were sold.

7. The Tribunal conjectured the substance of the transaction and wrongly interpreted the nature of the deposit by ignoring the legal nature of the transaction.”

6. After hearing the arguments of the assessee, the Tribunal allowed the miscellaneous petition filed by the assessee holding that there were three fundamental factual errors, namely, the Tribunal overlooked, (i) the provisions in the contract for return of cylinders; (ii) clear entries in the books of account by way of depreciation; and (iii) clear provisions in clause 13 which provides for refund of security deposit. So opining the Tribunal held that an error apparent had crept in the order of the Tribunal and that error is amenable to rectification. Accordingly, the Tribunal allowed the third M.P No. 21.Hyd. of 1987 by order dated December 29, 1987, and recalled the original earlier order dated March 31, 1986, and posted the appeal for fresh hearing in due course.

7. The Commissioner of Income-tax has made an application before the Tribunal under section 256 of the Act to refer the following two questions to this court:

“1. Whether, on the facts and in the circumstances of the case, the Income-tax Appellate Tribunal was correct in law in holding that certain errors apparent from record, amenable to rectification, have crept in the original order in ITA No. 551.Hyd. of 1986, dated March 31, 1986?

2. Whether, on the facts and in the circumstances of the case, the Appellate Tribunal was justified in recalling the original appellate order, drawing a different finding from the original one, when there is no change of facts or issues involved before them and ignoring the ratio laid down by the Supreme Court in T.S Balram, ITO v. Volkart Bros., [1971] 82 ITR 50?”

8. The Tribunal on consideration of the merits of the matter has referred the following question to this court for opinion:

“Whether, on the facts and in the circumstances of the case, the Income-tax Appellate Tribunal was correct in law in holding that certain errors apparent from record, amenable to rectification, have crept in the original order in ITA No. 551.Hyd., of 1986, dated March 31, 1986?”

9. We have heard Mr. D. Srinivas, learned standing counsel for the Income-tax Department, and Mr. Y. Ratnakar, learned counsel for the assessee. Learned standing counsel would contend that the Tribunal having rejected the two miscellaneous petitions filed by the assessee under section 254(2) of the Act earlier, seriously erred in law in allowing the third application for the same relief and recalling its original order made in the appeal and posting the appeal for fresh hearing, and that the impugned order of the Tribunal was tantamount to reviewing its own order made in the appeal. Learned standing counsel would point out that the Act does not confer any such reviewing power on the Tribunal.

10. On the other hand, Sri Y. Ratnakar, learned counsel for the assessee, placing reliance on two judgments of this court in CIT v. ITAT, [1994] 206 ITR 126 and Asst. CIT v. Dr. Ved Prakash, [1994] 209 ITR 448 and also a judgment of the Allahabad High Court in Commissioner Of Income-Tax v. Keshav Fruit Mart, [1993] 199 ITR 771, would contend that the order of the Tribunal merely recalling its earlier order and posting the appeal for fresh hearing cannot be a subject-matter of a reference under section 256 of the Act. Learned counsel would also maintain that the judgment of the Supreme Court in CIT v. Durga Engineering and Foundry Works, [2000] 245 ITR 272 and the judgment of the Madhya Pradesh High Court in Commissioner Of Income-Tax v. Tirupati Construction Co., [2000] 241 ITR 833 in a way support his contention. Sri Y. Ratnakar, learned counsel would also contend that the contention of learned standing counsel for the Income-tax Department that the order of the Tribunal recalling its earlier order is tantamount to review of the earlier order is not tenable inasmuch as such a contention was not raised before the Tribunal and in fact such a question was not sought to be referred to this court under section 256 of the Act.

11. Before dealing with the rival contentions of learned counsel for the parties, it is appropriate to refer to the provisions of sections 254 and 256 of the Act. Section 254 reads:

“254.(1) The Appellate Tribunal may, after giving both the parties to the appeal an opportunity of being heard, pass such orders thereon as it thinks fit.

(2) The Appellate Tribunal may, at any time within four years from the date of the order, with a view to rectifying any mistake apparent from the record, amend any order passed by it under sub-section (1), and shall make such amendment if the mistake is brought to its notice by the assessee or the Assessing Officer:

Provided that an amendment which has the effect of enhancing an assessment or reducing a refund or otherwise increasing the liability of the assessee, shall not be made under this sub-section unless the Appellate Tribunal has given notice to the assessee of its intention to do so and has allowed the assessee a reasonable opportunity of being heard:

Provided further that any application filed by the assessee in this sub-section on or after the 1st day of October, 1998, shall be accompanied by a fee of fifty rupees.”

12. Section 256 reads:

“256.(1) The assessee or the Commissioner may, within sixty days of the date upon which he is served with notice of an order passed before the 1st day of October, 1998, under section 254, by application in the prescribed form, accompanied where the application is made by the assessee by a fee of two hundred rupees, require the Appellate Tribunal to refer to the High Court any question of law arising out of such order and, subject to the other provisions contained in this section, the Appellate Tribunal shall, within one hundred and twenty days of the receipt of such application, draw up a statement of the case and refer it to the High Court:

Provided that the Appellate Tribunal may, if it is satisfied that the applicant was prevented by sufficient cause from presenting the application within the period hereinbefore specified, allow it to be presented within a further period not exceeding thirty days.

(2) If, on an application made under sub-section (1), the Appellate Tribunal refuses to state the case on the ground that no question of law arises, the assessee or the Commissioner, as the case may be, may, within six months from the date on which he is served with notice of such refusal, apply to the High Court, and the High Court may, if it is not satisfied with the correctness of the decision of the Appellate. Tribunal, require the Appellate Tribunal to state the case and to refer it, and on receipt of any such requisition, the Appellate Tribunal shall state the case and refer it accordingly.

(3) Where in the exercise of its powers under sub-section (2), the Appellate Tribunal refuses to state a case which it has been required by the assessee to state, the assessee may, within thirty days from the date on which he receives notice of such refusal, withdraw his application, and, if he does so, the fee paid shall be refunded.”

13. Section 256 empowers the assessee as well as the Revenue “to require the Appellate Tribunal to refer to the High Court any question of law arising out of” an order passed under section 254. Section 254(1) states that the Appellate Tribunal may, after giving both the parties to the appeal, an opportunity of being heard, pass such orders thereon as it thinks fit. Thus section 254(1) empowers the Tribunal to pass orders not only on the appeal before it but also upon such applications as are made in the appeal and it specifies that, before doing so, it shall hear both the parties to the appeal. Section 254(2) empowers the Tribunal to rectify any mistake apparent from the record and amend any order passed by it under sub-section (1) within four years from the date of that order. The proviso requires it to give notice to the assessee before enhancing the assessment and allow it or him a reasonable opportunity of being heard.

14. The words “any question of law arising out of such order” occurring in sub-section (1) of section 256 have the widest import. According to Chambers English Dictionary the word “any” as an adjective and pronoun, means one indefinitely, which ever, no matter which. The word “any” has diversity of meaning and it may be implied to indicate “all or every as well as some or one” and its meaning in a given statute depends upon the context and subject-matter of the statute. According to Black's Law Dictionary, it is often synonymous with either “every” or “all”. Its generality may be restricted by the context in which that the word occurs in a statute. The Supreme Court in Lucknow Development Authority v. M.K Gupta., [1994] 80 Comp Cas 714, dealing with the use of the word “service” in the context it has been used in the definition of the term in clause (o) of section 2 of the Consumer Protection Act has opined that the word “any” indicates that it has been used in the wider sense extending from “one to all”. In G. Narsingh Das Agarwal v. Union of India, [1967] 1 MLJ 197, the court opined that the word “any” means “all” except where such a wide construction is limited by the subject-matter and context of the statute. The Patna High Court in Ashiq Hasan Khan v. Sub-Divisional Officer, AIR 1965 Patna 446 (DB) and Chandi Prasad v. Rameshwar Prasad Agarwal, AIR 1967 Patna 41, has held that the word “any” excludes “limitation or qualification”. In State Of Kerala v. Shaju, [1985] KLT 33, the court held that the word “any” is expressive. It indicates in the context “one or another” or “one or more”, “all or every” “in the given category”; it has no reference to any particular or definite individual, but to a positive but undetermined number in that category without restriction or limitation of choice. Having regard to the context in which the word “any” occurs in sub-section (1) of section 256, it only means “each and every” and, therefore, each and every question of law arising out of an order made by the Appellate Tribunal under section 254 of the Act can be a subject-matter of reference to the High Court as contemplated under sub-section (1) of section 256 of the Act. Therefore, the contention of Sri Y. Ratnakar, learned counsel for the assessee, that the order of the Tribunal made under sub-section (2) of section 254 of the Act merely recalling the order made by it under sub-section (1) of section 254 and posting the appeal for hearing in due course cannot be the subject-matter of a reference under section 256(1) of the Act, cannot be accepted. It is pertinent to note that the Income-tax Department is the beneficiary of the order made under sub-section (1) of section 254 of the Act. The Tribunal by recalling that order has taken away the vested right in the Income-tax Department. Therefore, it cannot be simplified by saying that the order made by the Tribunal recalling the order is an innocuous and harmless order without any legal consequences. Looking from the angle of the Income-tax Department, the consequence is quite grave and prejudicial to the interest of the Revenue. Further, as a certainty it cannot be said that after recalling the order and after rehearing of the appeal, the order that may be made by the Tribunal would go in favour of the Income-tax Department. It will be seen, therefore, that the consequences of the recall order passed in the second rectification miscellaneous petition under section 254(2) of the Act could have serious financial implication to the Revenue and it is unthinkable that the Department should be left without a remedy, in such a fact situation, by way of reference to the High Court under section 256 of the Act. It is quite apposite to refer to the decision of the apex court in Durga Engineering and Foundry Works' case, [2000] 245 ITR 272. In that case, the assessment years in question are 1987-88 and 1988-89. For these assessment years, the Income-tax Officer made additions to the income of the assessee, which is a partnership firm, for in his view that represented the unexplained cash credits in the names of the partners of the firm. The assessments were upheld by the Commissioner in appeal. The Appellate Tribunal allowed the assessee's appeal, set aside the assessment orders, and restored the matters to the file of the Assessing Officer, directing him to pass, a fresh order after allowing the assessee the opportunity to support the documents that it had earlier filed before him. Neither party sought to file any reference-application the reagainst, but the assessee filed an application before the Tribunal under section 254(2) of the Act seeking to rectify it based on the allegation that the objection raised by it had not been decided. The Tribunal allowed the rectification application. It noted that the assessee's objection was that the assessment on account of the credits should be made in the hands of the partners of the assessee as they had made payments by cheque. The Tribunal observed that this issue had not been decided by it and that there was sufficient force in it. Accordingly, it rectified “the error by disposing of the preliminary issue raised by the assessee. We accordingly amend our order and direct that the additions made by the Assessing Officer amounting to Rs. 5,00,851 and Rs. 85,700 be deleted from their income for the assessment years 1987-88 and 1988-89. As observed, the Department may investigate the matter in the hands of the partners.” The Revenue filed an application before the Tribunal seeking reference of two questions that arose out of the order on the rectification application. The questions read thus (page 273):

“1. Whether, on the facts and in the circumstances of the case, the Tribunal was justified in holding that the provisions of section 68 of the Income-tax Act, 1961, are not applicable to the facts of the present case?

2. Whether, on the facts and in the circumstances of the case, the Tribunal was justified in law in deleting the additions of Rs. 5,00,851 and Rs. 85,700 made by the Assessing Officer under section 68 of the Income-tax Act, 1961, representing the unexplained cash credits in the accounts of the partners?”

15. The Tribunal declined to make the reference on the basis that these were questions of fact. The Revenue then made an application to the Madhya Pradesh High Court under section 256(2) of the Act and the High Court dismissed the same following its own earlier judgment in Popular Engineering Co. v. Commissioner Of Income-Tax, M.P-I, [1983] 140 ITR 398, 403:

“The language used in section 256(1) shows that the order contemplated under section 256(1) is the order passed under section 254 of the Act. Under section 254(1) the Appellate Tribunal passes an order on the appeal filed by the assessee or the Revenue. This order may be amended under section 254(2) of the Act with a view to rectifying any mistake apparent from the record. If, however, the application for rectification is dismissed, there is no amendment of the order passed under section 254(1) of the Act. Since no reference in the instant case was sought in respect of the appellate order passed under section 254(1), we are of the view that no reference from the order rejecting an application for rectification of any mistake is tenable under section 256(1) of the Act. The position obviously would have been different had the Appellate Tribunal amended its appellate order with a view to rectifying any mistake apparent from the record. In that case the amended order could be a subject-matter of reference under section 256(1) of the Act. But if the order is not amended and the application for rectification is dismissed, the only order which stands is the order passed in appeal under section 254(1) of the Act and if no reference has been sought in respect of such order, the same becomes final in view of the language used in section 254(4) of the Act”.

16. The above opinion of the Madhya Pradesh High Court was assailed before the apex court in Durga Engineering and Foundry Works' case, [2000] 245 ITR 272. The Supreme Court, while finding flaw in the opinion of the Madhya Pradesh High Court, held (page 276):

“It will be seen, therefore, that the consequence of an order passed in rectification under section 254(2) could have serious financial implications for the assessee and it is unthinkable that the assessee should be left without a remedy, by way of a reference to the High Court, if his assessment is erroneously increased in rectification proceedings.

It is also to be noted that section 256 contemplates the reference of a question of law arising out of an order passed ‘under section 254’; that is to say, an order both under section 254(1) and section 254(2).

In our view, therefore; under the provisions of section 256, a reference may be made to the High Court of a question of law that arises upon any order of the Tribunal. The view taken by the High Court in the earlier judgment in Popular Engineering Co.'s case, [1983] 140 ITR 398 (MP), and followed by it in the order under challenge is erroneous.

There is no doubt in our mind, particularly having regard to the fact that the deletions of the additions that had been made by the Assessing Officer were made in rectification proceedings, that the questions that were sought to be referred were questions of law and that the High Court ought to have called upon the Tribunal to refer the same to it for its consideration”.

17. This court in an unreported judgment in ITC No. 73 of 1994, dated September 18, 2000, of which one of us (S.R Nayak J.) is a member, while reviewing the correctness of the view taken by the Tribunal placing reliance on the judgment of this court in Commissioner Of Income-Tax, A.P v. N.J Dadabai, [1978] 115 ITR 317 that no reference would lie against an order of the Tribunal in a miscellaneous petition passed subsequent to the disposal of the main case, and that reference can only be in respect of the main order in the appeal decided by the Tribunal, has held:

“It is seen from section 256(2) that an order passed under section 254 could be the subject matter of reference under section 256(1) or 256(2) as the case may be Section 256 does not make any distinction between the main order passed under section 254(1) or section 254(2). However, in the guise of seeking reference in respect of an order passed under section 254(2), it is not open to the assessee or to the revenue to question the conclusions in the main order. The reference as against an order passed under section 254(2) could only be on the question whether the Tribunal was justified in exercising or not exercising the power under section 254(2). In other words, whether there was any mistake in the order of the Tribunal which is apparent from the record to which section 254(2) was attracted, is the only question that could be formulated and agitated in a reference.”

18. The above judgment of this court is also an authority to state that an order under section 254(2) of the Act could be a subject-matter of reference under section 256(1) of the Act though the facts of that case are slightly different from the facts in this case.

19. However, Mr. Y. Ratnakar, learned counsel for the assessee, would place reliance on the judgments of this court in CIT v. ITAT, [1994] 206 ITR 126 and Dr. Ved Prakash's case, [1994] 209 ITR 448 in support of his contention. In our considered opinion, both the decisions of this court are of no help to the respondent-assessee.

20. In CIT v. ITAT, [1994] 206 ITR 126 (AP) for the assessment years 1977-78, 1978-79 and 1979-80, assessment orders were made accepting the returns filed by the assessee. A survey operation conducted by the Department under section 133A of the Act on September 11, 1980, revealed some secret books of account of the assessee. The Department thereupon issued notices under section 148 of the Act and completed reassessment. Penalty was also levied. The penalty was confirmed by the Commissioner of Income-tax (Appeals) and the Tribunal. Subsequently, on a miscellaneous application, the Tribunal allowed it by its order dated April 29, 1991, holding that in its previous order dated September 30, 1990, it had not recorded any finding on a point raised at the time of hearing of the appeal and that was a mistake which justified exercise of the power under section 254(2) of the Act. Accordingly, the Tribunal recalled its earlier order and posted the matter for hearing afresh. That order of the Tribunal was assailed in a writ petition before this court under article 226 of the Constitution of India. Before this court a preliminary objection was raised about the maintainability of the writ petition contending that against the order of the Tribunal, a reference lies under section 256 of the Act. Dealing with that preliminary objection, this court held (page 132):

“On a closer reading of sections 254 and 256 of the Income-tax Act, we are of the opinion that a reference lies from orders under section 254(1) or final orders made under section 254(2) of the Act. In the latter case, the order which may be subject to a reference under section 256(1) will only be an order passed by the Tribunal amending its earlier order rectifying the mistake brought to its notice by the assessee or the Assessing Officer. Finality is attached only to orders disposing of the appeal under section 254(1) or orders amending such appellate orders in exercise of the power of rectification under section 254(2) of the Act. We are of the opinion that an order on a miscellaneous application in the nature of the impugned order, though passed under section 254(2) deciding to recall its previous order and to post the matter afresh for hearing, is not an order from which a reference can be made under section 256 of the Act. In this view, the preliminary objection which counsel for the respondent has raised can only be dismissed”.

21. Thus, this court held that the order of the Tribunal merely recalling its earlier order and posting the case for fresh hearing cannot be the subject-matter of a reference under section 256 of the Act and, therefore, the writ petition challenging such an order is maintainable. The above view of the Division Bench of this court was cited with approval by another Division Bench of this court in Dr. Ved Prakash's case, [1994] 209 ITR 448 (AP). Sri Y. Ratnakar, learned counsel for the assessee, also cited a judgment of the Allahabad High Court in Keshav Fruit Mart's case, [1993] 199 ITR 771. The full facts of the case are not forthcoming from the judgment. In that case the Revenue had raised the following question in an application made under section 256(2) of the Act (page 771):

“Whether, on the facts and in the circumstances of the case, the Tribunal was in law justified in recalling their order dated July 2, 1987, in I.T.A No. 2113 (A11.) of 1984, with a direction to rehear the case which was passed by them after a careful consideration of all the grounds of appeal taken by the Revenue?”

22. While dismissing that application, the Allahabad High Court has observed (page 772):

“It is urged by learned-; standing counsel that the arguments were duly addressed before the Tribunal on this ground. It is conceded by him that the Tribunal has not at all discussed that ground in its order and complete omission to discuss, the ground set up in appeal is undoubtedly a mistake apparent from the record. There being no controversy on the fact that the Tribunal completely omitted to consider the ground, in our opinion, the aforesaid question is not referable and, therefore, the application is dismissed.”

23. Although the facts of the case are not set out in the judgment, the view taken by the Allahabad High Court seems to support the view taken by this court in CIT v. ITAT, [1994] 206 ITR 126.

24. It is true that as per the judgment of this court in CIT v. ITAT, [1994] 206 ITR 126, the order passed by the Tribunal under sub-section (2) of section 254 of the Act merely recalling an order under sub-section (1) of section 254 of the Act and posting the case for hearing cannot be the subject-matter of a reference to this court under section 256 of the Act. But the question for our consideration is whether that opinion of this court is still good law in the light of the judgment of the Supreme Court in Durga Engineering and Foundry Works' case, [2000] 245 ITR 272. As already seen above, in that case the Supreme Court has opined that under the provisions of section 256, a reference may be made to the High Court on a question of law that arises out of any order of the Tribunal, i.e, to say even an order made under sub-section (2) of section 254 of the Act and the Supreme Court was pleased to observe that if an order passed in a rectification application under section 254(2) of the Act has serious financial implications for the assessee, it is unthinkable that the assessee should be left without a remedy, by way of a reference to the High Court. As already pointed out the order made by the Tribunal recalling its earlier order made under subsection (1) of section 254 of the Act is prejudicial to the Revenue and, therefore, the ratio of the judgment of the Madhya Pradesh High Court in Tirupati Construction Co.'s case, [2000] 241 ITR 833, squarely applies to the facts of this case also. In the light of the judgment of the Supreme Court in Durga Engineering and Foundry Works' case, [2000] 245 ITR 272, it should be held that the judgments of this court in CIT v. ITAT, [1994] 206 ITR 126 and Dr. Ved Prakash's case, [1994] 209 ITR 448 are no longer good law. The other contention of learned counsel for the assessee is that the question whether the order of the Tribunal recalling its order made under section 254(1) of the Act is tantamount to review of that order or not is not the question referred to this court by the Tribunal under section 256 of the Act and, therefore, the contention of learned standing counsel for the Income-tax Department in that regard is untenable. We do not agree with learned counsel for the assessee. It is true that the question as referred to this court does not specifically refer to the question of law raised by standing counsel for the Department. But, in our considered opinion, the question referred to this court includes the incidental question relating to the jurisdiction and competency of the Tribunal to review its earlier order rejecting the miscellaneous applications twice wherein similar relief was sought by the assessee. It is well settled the a statutory Tribunal or an authority cannot exercise review power unless the statute which creates such Tribunal or authority grants such power specifically to such Tribunal or authority. It is very pertinent to notice that the earlier two miscellaneous petitions were rejected by the Tribunal not on technical grounds but on the merits. In that view of the matter, there is force in the contention of learned standing counsel for the Income-tax Department that the order made by the Tribunal on the third miscellaneous petition is tantamount to review of its earlier order.

25. In the result and for the foregoing reasons, we answer the question in favour of the Revenue and against the assessee. No costs.